Citation Nr: 18152819 Decision Date: 11/26/18 Archive Date: 11/26/18 DOCKET NO. 16-28 167 DATE: November 26, 2018 ORDER Service connection for hearing loss is granted. Service connection for tinnitus is granted. FINDINGS OF FACT 1. The competent and credible evidence of record reflects the Veteran’s current bilateral hearing loss disability had its onset as a result of combat service in Vietnam. 2. The competent and credible evidence of record reflects the Veteran’s tinnitus had its onset as a result of combat service in Vietnam. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for hearing loss have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 U.S.C. §§ 3.102, 3.303, 3.304, 3.385. 2. The criteria for a grant of service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1131, 1154, 5107; 38 U.S.C. §§ 3.102, 3.303, 3.304; Charles v. Principi, 16 Vet. App. 370 (2002); Fountain v. McDonald, 27 Vet. App. 258 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1968 to April 1970, which included combat service in the Republic of Vietnam and his decorations include the Army Commendation Medal with “V” device. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veterans Law Judge in July 2017. A transcript of that hearing is of record. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA’s policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Service connection for hearing loss For the purpose of applying the laws administered by VA, impaired hearing is considered a disability when the auditory threshold in any of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz is 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In this case, the record, including a November 2013 VA examination, reflects the Veteran does have a bilateral hearing loss disability as defined by VA regulations. He has contended, to include at his July 2017 hearing, that he developed hearing problems due to acoustic trauma while on combat duty in Vietnam, and has provided details thereof. In addition, he reported in a June 2013 statement where he could not hear for about two days following one particular incident of such acoustic trauma. In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Here, the Veteran’s service personnel records confirm he had active service in the Republic of Vietnam from August 1968 to August 1969. Further, his account of acoustic trauma while engaged in combat appears consistent with his military occupational specialty (MOS) of armor crewman. In addition, his service personnel records reflect he served as a Tank Commander and Squad Leader during the period he was in Vietnam. His service personnel records also reflect he was awarded the Army Commendation Medal for Heroism because of “heroism in connection with military operations against an armed hostile force in the Republic of Vietnam.” Moreover, his testimony related to this case at the July 2017 hearing is credible, and related to circumstances he is competent to observe. Consequently, the Board finds that the competent and credible evidence of record reflects the Veteran did have combat service for purposes of this case, and the provisions of 38 U.S.C. § 1154(b) and 38 C.F.R. § 3.304(d) are applicable. In view of the foregoing, VA must presume the occurrence of the in-service injury. Moreover, the medical evidence shows that the Veteran has been diagnosed as having bilateral hearing loss and he reports the onset of the condition during combat service in Vietnam. Granted, the November 2013 VA examination includes an opinion against the Veteran’s current hearing loss being related to service. However, the rationale for this opinion appears to be based upon the fact testing showed his hearing was within normal limits at the time of his separation from service, and there was no significant change from the time of enlistment. The Veteran reported in his Notice of Disagreement (NOD) that he was asked to take another examination for his hearing at discharge because the results were inconclusive, but he refused as he would have had to stay in service for a longer period of time. Thus, the Board finds that the evidence is not sufficient to rebut the presumption that the hearing loss became manifest during his combat service. See Reeves, supra. In summary, there is competent and credible evidence the Veteran had in-service, combat-related acoustic trauma; a credible history of hearing loss in and since service; and competent medical evidence showing bilateral hearing loss disability in accord with 38 C.F.R. § 3.385. Therefore, the Board finds that service connection is warranted for hearing loss because the disability had its onset in service. See also 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Service connection for tinnitus The Veteran has contended, to include at his July 2017 hearing, that his tinnitus had its onset during combat service in Vietnam, and that it was due to the same acoustic trauma that caused his hearing loss. The Board has already found his account of in-service, combat-related acoustic trauma, to be competent and credible. Moreover, he stated in the June 2013 statement that he had constant ringing (i.e., tinnitus) in his ears during such service. The Board further observes that the Veteran’s lay testimony is of particular importance in this case as the determination of whether or not service connection is warranted for tinnitus turns almost entirely on his lay testimony. Tinnitus is, by definition “a noise in the ears, such as ringing, buzzing, roaring, or clicking. It is usually subjective in type.” Dorland’s Illustrated Medical Dictionary, 1914 (30th ed. 2003). As noted above, tinnitus is “subjective,” as its existence is generally determined by whether or not the Veteran claims to experience it. For VA purposes, tinnitus has been specifically found to be a disorder with symptoms that can be identified through lay observation alone. See Charles v. Principi, 16 Vet. App. 370 (2002). If a veteran reports ringing in his or her ears, then a diagnosis of tinnitus is generally applied without further examination. In addition, since the diagnosis of tinnitus is so heavily reliant upon lay statements, the etiology of the disorder is similarly reliant upon them. The date that a veteran reports that the tinnitus symptoms began is generally accepted as the date that the disorder began, without further examination. Thus, while service connection for tinnitus requires a medical diagnosis of tinnitus, lay testimony plays an unusually important role in determining whether such disability is etiologically related to service. This is of crucial importance in the case on appeal. The medical evidence of record shows that the Veteran has a current diagnosis of tinnitus. The dispute is over the etiology of the disorder, not its existence. The Board also notes that certain chronic diseases are subject to a grant of service connection on a presumptive basis when present to a compensable degree within the first post-service year, to include organic diseases of the nervous system. 38 C.F.R. §§ 3.307, 3.309(a). The Court recently held that tinnitus was a disease, rather than merely a symptom, and that 38 C.F.R. § 3.309(a) "includes tinnitus, at a minimum where there is evidence of acoustic trauma, as an 'organic disease[] of the nervous system.'" Moreover, the Court indicated that, as such a presumptive condition, tinnitus warranted consideration of the continuity of symptomatology provisions found at 38 C.F.R. § 3.303(b). Fountain v. McDonald, 27 Vet. App. 258 (2015). The Board acknowledges the November 2013 VA examination included an opinion against the Veteran’s tinnitus being etiologically related to service. However, that opinion appears to be based more upon the examiner’s finding hearing loss was not related to service, rather than the Veteran’s competent and credible account that recurrent tinnitus developed during active service. Moreover, as noted above, the Board has determined service connection is warranted for hearing loss. As stated above, the Veteran’s lay statements are generally sufficient for the purposes of determining the diagnosis and when tinnitus began. See Charles. Even when there no competent medical evidence of record that addresses when the tinnitus began, a veteran’s statements alone may be considered competent evidence to make such a determination. Id. at 374. Accordingly, the medical evidence of record shows that the Veteran has a current diagnosis of tinnitus and the credible lay evidence of record shows that it began while engaged in combat service in Vietnam and continued thereafter. Moreover, the Board has already determined service connection is warranted for hearing loss due to in-service, combat-related acoustic trauma. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection is warrant for tinnitus. See 38 U.S.C. §§ 1154(b), 5107; 38 C.F.R. §§ 3.102, 3.304(d). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD John Kitlas, Counsel